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(136 M 188. 661, 101 So. 691.) reasonable one or otherwise, at the We will next take up the contentime of repudiation, was a fact to tion that there was no contract of be determined by the jury under all meeting of the minds of the parties the circumstances of the case.” on any definite terms, so as to make

We will next notice the contention a completed contract. Appellants of appellants, that the complain- earnestly insist that there never ant's statement that $5,000 would was any agreement which would cover the indebtedness of the cor- constitute a binding contract, reporation, other than money bor- gardless of the Statute of Frauds. rowed from the banks, was a fraud- The testimony shows that Gressett's ulent representation or warranty. proposition was that he would take The complainant's version of the $4,000 in cash, and that he would case was the expression of an opin- undertake to carry the balance if ion, and that he did not represent they could not procure all cash. anything to Howard about the mat- The defendant Pugh, writing to ter; that is, that the conversation Gressett in the letter set out above, with Pugh was nothing more than says: "Howard and myself made the expression of an opinion, and the trade 0. K., and he will be over that Pugh was president of the cor- Wednesday morning to take charge. poration.

I will be over the latter part We think it was the function of the week, or anyhow by the time of the chancellor as a trier of

Mr. Simpson gets back from his facts to determine whether it was trip, to straighten everything up.” a representation or a

or a mere ex- And in the telegram of October 2, pression of opinion, and it was

1922, he says: “Everything 0. K. also his function as a trier of Howard will be there Wednesday facts to determine whether the morning." complainant made such statements Then, after a conversation over to Howard. The appellants pro- the telephone between Pugh and ceed upon the theory that Pugh's Gressett, Pugh sent the following admitted representation to Howard telegram October 4, 1922: was binding upon the complainant, “Howard comes to Meridian to-day because they insist that Pugh was to take charge of the affairs of the acting as agent for the complainant company in line with agreement. in selling the stock to Howard. In Also we are to buy your stock for our opinion, that assumption is not ten thousand dollars. Terms to be supported by the record. Gressett's agreed on by October fifteenth." testimony, and the correspondence, The telegram refers to some show that Pugh and Howard were

agreement, and the contract it redealing with Gressett, and not that fers to is to be in line with the Pugh was dealing with Howard for

agreement. It was held in Mercer Gressett. The chancellor had a Electric Mfg. Co. v. Connecticut right to accept Gressett's version of

Electric Mfg. Co. 87 Conn. 691, 89 the matter, and if we take his evi- Atl. 909, that the fact that some of dence as true it would certainly ap- the terms of an offer were stated in pear that Pugh was not represent

a conversation would not make the ing him in the deal. We think the

offer indefinite or uncertain, since it whole transaction shows that Pugh was capable of precise ascertainwas a joint purchaser in this ar

ment. Therefore, to find out what rangement with Gressett. It does

the agreement was referred to in not clearly appear what the relation

the telegram, we must have recourse between Pugh and Howard was as to the evidence. In this telegram

. to each other, but it does appear that it is clearly stated that "we are to they were buying from Gressett, buy your stock for ten thousand doland intended to get rid of Gressett lars." The amount of the purchase as manager, as well as to secure his was full and specific; the terms to stock in the corporation.

be agreed on by October 15th, 1922.


absence of de

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Now, when we refer back to the is stated, it will be presumed that agreement as disclosed by Gressett's the reasonable market price was inevidence, we get precisely what the tended. And in other like cases, terms were; that is, they were to when the terms are not absolutely execute their notes for the $6,000. certain, it is held that the parties

It is true that there ha in effect referred the matter -sale of corporate stock- is some uncertainty to a court or jury in case they dis

as to exactly how agree about it themselves." tails.

long the notes would In 13 C. J. 271. it is said: run, or precisely how they would be “Section 62. There are many executed, but they were to be carried terms not actually expressed in the under the agreement by Gressett. offer, which are implied by law, and Under this agreement the appellants which are as binding on both parties bound themselves to execute notes, after acceptance as though actually and Gressett bound himself to ac- spoken or written into the contract. cept such notes. That was the ver- A contract, it may truly be said, inbal agreement. Gressett's reply to cludes not only what the parties acthe telegram, “I confirm sale twenty tually write down or say, but all shares Meridian Chero-Cola Bot- those things which the law implies tling Company stock to you for ten as part of it, and likewise all matthousand dollars, terms and pay- ters which both the parties intend ment to be arranged negotiable by to express, but do not. October fifteenth," shows his inter- “Section 63. Every trade, busipretation of the contract, and, as ness, or calling has its usages, and that letter was acted upon in taking persons who make offers relating charge of the plant, we must con- thereto assume that all the customstrue the matter in the light of the ary incidents of such callings shall evidence and in his telegram of ac- be part of the agreement, and hence ceptance, and the appellants must do not expressly refer to them. Albe assumed to have acquiesced in though unexpressed, they are imthis interpretation, because after re- plied terms of the contract; and this ceiving it they took charge and re- is true in the case both of written mained in charge of the business and of oral contracts." until the filing of the suit.

In the case of Joy v. St. Louis, In 13 C. J. 268, under the head of 138 U. S. 1, 8, 43, 34 L. ed. 843, 847, "Intention Capable of Ascertain- 856, 11 Sup. Ct. Rep. 243, the Sument," it was said: “If, with the preme Court of the United States aid of the usual tests and principles dealt with a case of a contract beof construction, the court is able to tween two railroad companies and ascertain and to enforce the inten- the city of St. Louis, said agreement tion of the parties, their agreement being made by the park commissionwill not be held uncertain. So, an ers on behalf of the city of St. Louis, agreement drawn up by illiterate and said agreements being tripartite persons will not be held uncertain, agreements between the park comif it is possible for the court to as- missioners and the two railroad certain their meaning. While a con- companies, whereby the right of tract, incomplete on its face, máy way through the park was granted thereby be ambiguous, it is not nec- to one of the railroad companies, essarily void. Absolute certainty is which covenanted to permit other not required. That is certain which railroads to use such right of way may be rendered certain, according upon such terms and compensation to the maxim, ‘id certum est quod “as may be agreed upon by such certum reddi potest.' A promise not companies." It was insisted there in itself certain may be rendered that the contract was uncertain becertain by a reference to something cause the agreements were therecertain. An offer to sell goods need after to be made and were not exnot specify the price, for, if no price pressed in the contract. ,

At page (136 Mis8. 661, 101 80. 691.) 31, 138 U. S., page 852, 34 L. ed., cally, a relative clause generally page 251 of the Supreme Court Re- qualifies its immediate antecedent, porter, the court said: "'Said party and therefore, in this case, would re

“ of the second part shall permit, un- fer simply to that clause which proder such reasonable regulations and vides for the assumption by the terms as may be agreed upon, other Kansas road. This natural gramrailroads to use its right of way matical construction is strengthened through the park and up to the ter- by the punctuation-a comma after minus of its road in the city of St. the words “party of the second part," Louis, upon such terms, and for and none after the words "party of such fair and equitable compensa- the third part,” which seems to seption to be paid to it therefor, as arate the entire first clause from the may be agreed upon by such com- second and its qualifying terms. I panies.' It is to be construed in con- know that the matter of punctuanection with | 12 of the same agree- tion is never relied upon to defeat ment. In regard to these two para- the obvious intent; but, when the graphs, the opinion of the circuit meaning is doubtful, the punctuacourt says: 'It will be observed that tion is certainly a matter tending by the 9th paragraph the county to throw light upon it. Further, road agreed to permit the use of its there are not simply two, but really right of way by other railroads. three, antecedent clauses, the first Whether a like obligation was as- one being “the terms of the said consumed by the Kansas road depends tract between them;" that is, the upon the last sentence in the 12th two railroad companies. Very clearparagraph, which purports to grant ly this qualifying clause does not reto the Kansas road the right to oc- fer to that, and therefore it should cupy and enjoy the right of way not be held to qualify the second, through the park jointly with the unless the obvious intent compels county road, “on the terms of the such construction. It is objected said contract between them, and un- that the clause commencing “and der the same terms and conditions which are hereby assumed” is, under as are hereby and hereinbefore im

this construction, superfluous. I posed upon said party of the second think not. These improvements part, and which are hereby assumed called for the expenditure of money, by said party of the third part as and the idea seemed to be that the to improvements, except as to build- Kansas road should not only hold its ing a depot and switch in said park, rights upon certain conditions, but which the party of the second part that, as to those involving expendis to do itself.” It must be conceded iture of money, it should expressly that the meaning of this language is assume the performance.'not perfectly clear. It is claimed by At page 43, 138 U. S., page 856, the defendants that the words “as 34 L. ed., page 255 of the Supreme to improvements, except as to build- Court Reporter, the court said: “It ing, etc.," qualify, not only the im- provides that the County Company mediately preceding clause, com- 'shall permit other railroads to use mencing “and which are hereby as- its right of way. This is to be done sumed," but also the one prior, com- 'under such reasonable regulations mencing “and under the same terms and terms as may be agreed upon,' and conditions," and therefore that and 'upon such terms, and for such the terms and conditions as to im- fair and equitable compensation to provements are those alone cast up- be paid to the County Company on the Kansas road. This would “therefor, as may be agreed upon make the two clauses but a single by such companies. Not only are compound one, qualified by the fol- the regulations and terms to be realowing relative clause "as to im- sonable, but the compensation is to provements," etc. As against this be fair and equitable. Although the it must be observed that, grammati- statement is that the compensation

38 A.L.R.-44.

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is to be such 'as may be agreed upon the parties cannot agree upon an by such companies, yet the state equitable and just location of the ment that it is to be 'fair and equi- crossing, the chancellor must locate table' plainly brings in the element it for them. Slade v. Lexington, 141 of its determination by a court of Ky. 218–221, 32 L.R.A.(N.S.) 201, equity. If the parties agree upon 132 S. W. 404, and cases cited. On it, very well; but, if they do not, the return of the case to the circuit still the right of way is to be en- court, it will be transferred to equijoyed upon making compensation, ty, and the court, on the evidence and the only way to ascertain what now in the record and such other is a 'fair and equitable' compensa- evidence as either party may offer, tion therefor is to determine it by a will fix the point at which the crosscourt of equity. Such is, in sub- ing is to be placed, and give the railstance, the agreement of the parties. road company a reasonable time to The provision cannot be construed put it in.” as meaning that, if the parties do See, to like effect, Miller v. Kendig, not agree, there is to be no compen- 55 Iowa, 174, 7 N. W. 500; Worthsation, and that, because there can ington v. Beeman, 33 C. C. A. 475, in that event be no compensation, 63 U. S. App. 536, 91 Fed. 232; there is to be no enjoyment of the Burton v. Wells, 30 Miss. 688. right of way. In this view, it can- In Burton v. Wells, supra, the not be said that the court is mak- plaintiff sued the defendant upon a ing an agreement for the parties claim for $50, and judgment was which they did not make themselves. rendered for the defendant, and the Emery v. Wase, 8 Ves. Jr. 505, 32 plaintiff prosecuted his appeal to the Eng. Reprint, 451; Milnes v. Gery, circuit court, where judgment was 14 Ves. Jr. 400, 33 Eng. Reprint, rendered for the plaintiff below, and 574; Gregory v. Mighell, 18 Ves. Jr. from which judgment the case was 328, 34 Eng. Reprint, 341; Provi- brought to this court. The facts as dence v. St. John's Lodge, 2 R. I. stated by the court are as follows: 46; Dike v. Greene, 4 R. I. 285." Burton, the defendant below, and

In the case of Chesapeake & O. R. Wells, the plaintiff, purchased jointCo. v. Herringer, 158 Ky. 267, 164 ly a tract of land from one Rowe, S. W. 948, an agreement was made and paid each on account of the purbetween the landowner and the rail- chase the sum of $50; Rowe, at the road company by which the railroad

same time, made them a deed for the company agreed to put in a crossing land, and took the notes of each for the landowner at a point to be party for the balance of the puragreed upon by the parties. It was chase money. This deed not having held that this was not void, because been recorded, Burton afterwards the element of reasonableness en- proposed to Rowe to make to him tered into it. At page 270 the court (Burton) a deed for the entire tract said: “The contract is not void, be- of land; Rowe agreed to do so if cause it is provided that the parties Wells would consent to the arrangeare to agree upon the location of the ment. Wells, being approached on crossing, and Gilkerson is named as

the subject, consented, on condition a representative of the company, that Burton would take up the notes who is to act for it. The third cross- given by Wells, and would pay back ing is a part of the consideration Yor

to Rowe, for the benefit of Wells, the the things granted by the contract, $50 which had been paid. This anand the railroad company cannot swer was communicated to Burton, take the privileges granted and who did not agree to pay back the withhold the consideration. The $50, but only to take up Wells's substance of the contract is that notes, Rowe, however, made the Herringer is to have the third deed as requested by Burton, which crossing. Only the location of that deed he then received. It is not crossing is left undetermined. If shown by the evidence what became

(136 Miss. 661, 101 80. 691.) of the deed which had been previ- The judgment of the court below ously made to Burton and Wells. will be affirmed on condition that the Upon this state of facts the question appellee surrenders the shares of for decision is whether Burton, tak- stock to the defendants, it appearing the deed from Rowe, knowing at ing that he has offered to do so and the same time the terms prescribed they had declined to receive such by Wells as the conditions upon shares. which he (Burton) might take the deed to himself, must be understood

Sykes, J., dissenting:

Section 3123 of Hemingway's as agreeing to those terms. It is

Code (§ 4779, Code of 1906) protrue that Burton said that he would

vides that “a contract for the sale not pay back to Wells the $50 which he had paid; and it may be conceded

of any personal property, goods,

wares, or merchandise, for the price that as a general rule the law will not imply a promise, where the par

of fifty dollars or upwards, shall not

be allowed to be good and valid unty has refused to make an express promise in regard to the same mat

less the buyer shall receive part of

the personal property, goods, wares, ter. But here the promise to pay the $50 was the condition upon

and merchandise, or shall actually which Wells agreed that the deed

pay or secure the purchase money, might be made to Burton. His right

or part thereof, or unless some note to the deed depended upon his will

or memorandum, in writing, of the ingness to perform the condition,

bargain be made and signed by the and, if he refused to perform the

party to be charged by such concondition, he must be understood, at

tract, or his agent thereunto law

fully authorized." the same time, as refusing to re

Stocks in corporations are perceive the deed. And the converse

sonal property. In this case the neof this proposition must be held as

gotiations were for the sale and pur. equally true,-if he received the

chase of twenty shares of stock for deed, he received it with the condition annexed by Wells, that he (Bur

an alleged price of $10,000. None of

the stock was delivered. All of us ton) should pay back the $50. He must be understood either as wholly

agree that the letters and telegrams

were insufficient as to the terms and agreeing, or disagreeing, to the con

conditions of the sale to constitute a dition. If wholly disagreeing, he, of

note or memorandum in writing uncourse, declined receiving the deed;

der this statute. Three of the judgand, if wholly agreeing, he undertook to perform the conditions an

es, however, think that the turning

over of the management of the plant nexed by Wells. So, in the case before the court, buyer of a part of the personal

to Howard was a delivery to the the defendants having accepted the plant and the management thereof, property under this statute. I disthey must pay the consideration

agree with this conclusion.

There were 100 shares of stock which they agreed to pay. The defendants could not take charge of

of this corporation. The appellant

Pugh and his wife owned eighty the plant and operate it, refusing to rescind after having knowledge of

shares, and the appellee, Gressett, the debts which the company owed

twenty shares. The parent comto restore the status quo ante, and

pany was dissatisfied with the man

This led to escape their obligation imposed by agement of Gressett. the agreement under which they as

negotiations for a sale of Gressett's sumed charge and received the ben

stock. It was understood between efits of the possession and manage

Pugh and Gressett that, in case ment of the plant.

Gressett's stock was sold, he was There are a number of other also to retire from the management. points presented, but we do not The negotiations were not for the think they call for a response in this purchase of a majority or controlopinion.

ling number of shares of the cor

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